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February 26, 2013

Another big SCOTUS criminal justice day on tap

As reported in this prior post, yesterday proved a notable SCOTUS day for fans of intricate federal criminal procedure (though likely for few others). But today is one I had long noted on my calendar because these two cases (summaries/previews via SCOTUSblog) due to be argued should be of special interest for sentencing fans:

Issue: Whether a sentencing court violates the Ex Post Facto Clause by using the U.S. Sentencing Guidelines in effect at the time of sentencing rather than the Guidelines in effect at the time of the offense, if the newer Guidelines create a significant risk that the defendant will receive a longer sentence.

Comments

King might be the biggest criminal case since Skinner v Oklahoma.

The petition for cert, pgs 15-16.

FN 6, “It should be added that all United States attorneys and marshals are instructed by the Attorney General not to make public photographs, Bertillon measurements or fingerprints prior to trial, except when a prisoner becomes a fugitive from justice, and are required to destroy or to surrender to the defendant all such records after acquittal or when the prisoner is finally discharged without conviction. There is therefore as careful provision as may be made to prevent the misuse of the records and there is no charge of any threatened improper use in the present case.” United States v.Kelly, 55 F.2d 67, 70 (2d Cir. 1932).

Does the government really do this? In the same sense that social security numbers are used only for social security purposes as promised.

Then on page 16, just because "CODIS does not accept any information outside its pre-approved profile fields" that does mean that a government agency does not have that information and it will not be available in the future once the purpose of social security number evolves; oh, wait, there are 13 numbers here, not nine.

But I'm certain we are headed for a Brave New World, and I predict the SCOTUS will approve. Wouldn't the collection DNA at birth be the obvious "smart on crime" thing to do? And by then, just imagine all things that can be done with that profile. Which leads us full circle back to Skinner v Oklahoma and sterilization or something more Frankenstein. It is inevitable.

Posted by: George | Feb 26, 2013 2:53:18 PM

In Peugh vs. United States, petitioner's counsel Stephen Kinnaird sucked - big time - at the oral argument. Of all the justices, Breyer (THE stalwart of the Guidelines) came to his aid, and guess what, Kinnaird just did not get it! Kinnaird did a great disservice to all the defendants. ("What a maroon!" the "Wabbit" would have exclaimed!) Kinnaird was so dense that it appeared that he had his head buried in the sand so deeply that an ostrich would have been ashamed. What he should have argued is that the "exposure" to the "benchmark" used by the judiciary is what mattered to the Ex Post Facto clause prohibition. The benchmark in this case (and cases like this) is the US Sentencing Guidelines. I can give an "oversimplified" example, where a defendant is alleged to have committed a crime when the statutory maximum (the "benchmark" in this instance) is 20 years; and it was 30 years, when he was sentenced. The defendant in this example was sentenced under the 30-year regime to a term of 10 years. Would this sentence violate the Ex Post Facto clause prohibition? Under my argument, yes, it indeed would, because the defendant in that case was exposed to 30 years, which means that the court could have had the "authority" (i. e., the reviewing court would say that it was "reasonable," vis-a-vis the "benchmark," and reviews it under the "abuse-of-discretion" standard, rather than the "clear-error" standard) to sentence him to a term of imprisonment up to 30 years. It does not matter what the "actual" sentence ultimately was, but what the "exposure" was.
Kinnaird also screwed up when the Court asked him what he thought of the potential Ex Post Facto clause violation in receiving victim testimony, which is simply answered by Justice Chase's definition of the Ex Post Facto clause. Kinnaird should have "digested" Justice Chase's definition, before he went to the oral argument, today! (I truly think that the Court misapprehended when it distinguished between the procedural and substantive laws, but that matter is for another case. One has to keep in mind that there was no statutory maximum in those times, so that there was not much of a discussion - if any - of sentence in those days.)

In Calder vs. Bull, 3 US, 386, 390 (1798), Justice Chase defined the Ex Post Facto prohibition as:
"I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender."

Posted by: John Marshall | Feb 26, 2013 3:49:05 PM

Corrections:

Then on page 16, just because "CODIS does not accept any information outside its pre-approved profile fields" that does not mean that a government agency does not have that information and it will not be available in the future once the purpose of social security number evolves; oh, wait, there are 13 numbers here, not nine.

Wouldn't the collection DNA at birth conjoined with the SS # be the obvious "smart on crime" thing to do?

Posted by: George | Feb 26, 2013 5:06:22 PM

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